449 U.S. 64 (1980), 79-770, Environmental Protection Agency v. National Crushed Stone Association

Docket Nº:No. 79-770
Citation:449 U.S. 64, 101 S.Ct. 295, 66 L.Ed.2d 268
Party Name:Environmental Protection Agency v. National Crushed Stone Association
Case Date:December 02, 1980
Court:United States Supreme Court
 
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449 U.S. 64 (1980)

101 S.Ct. 295, 66 L.Ed.2d 268

Environmental Protection Agency

v.

National Crushed Stone Association

No. 79-770

United States Supreme Court

Dec. 2, 1980

Argued October 7, 1980

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Syllabus

Under § 301(b) of the Federal Water Pollution Control Act, the Environmental Protection Agency (EPA) is to set 1977 effluent limitations for categories of point sources, requiring such sources to meet standards based on application of the "best practicable control technology currently available" (BPT), and 1987 limitations, requiring all point sources to meet standards based on application of the "best available technology economically achievable" (BAT). Section 301(c) of the Act provides for variances from 1987 BAT effluent limitations for individual point sources upon a showing "that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operators; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants." However, the Act contains no similar variance provision authorizing consideration of the economic ability of the individual operator to meet the cost of complying with 1977 BPT standards. In 1977, the EPA promulgated BPT pollution discharge limitations for the coal mining industry and for certain portions of the mineral mining and processing industry. Under the regulations, a greater than normal cost of implementation will be considered in acting on a request for a variance, but a variance will not be granted on the basis of the applicant's economic inability to meet the cost of implementing the uniform standard. Respondents sought review of the regulations in various Courts of Appeals, challenging both the substantive standards and the variance clause. All of the petitions were transferred to the Court of Appeals for the Fourth Circuit, which set aside the variance provision as unduly restrictive and required the EPA to consider, inter alia, the factors set out in § 301(c), including the applicant's economic capability.

Held: The Court of Appeals erred in not accepting the EPA's interpretation of the Act. The EPA is not required by the Act to consider economic

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capability in granting variances from its uniform BPT standards. Pp. 73-85.

(a) The statute's plain language does not support the Court of Appeals' position. Section 301(c)'s requirement for a BAT variance of "reasonable further progress" toward the elimination of pollutant discharges refers to the prior BPT standard, but there is no comparable prior standard with respect to BPT limitations. And since BPT limitations do not require an industrial category [101 S.Ct. 298] to commit the maximum resources economically possible to pollution control, even if affordable, the § 301(c) BAT variance factor as to the maximum use of technology within the applicant's economic capability is inapposite in the BPT context. More importantly, under the Act, the Administrator of the EPA, in determining BPT limitations, is directed to consider the benefits of effluent reductions as compared to the cost of pollution control in defining the best practicable technology at a level that would effect the 1977 goal of substantially reducing total pollution produced by each industrial category. Thus, the statute contemplated regulations that would require a substantial number of point sources with the poorest performances either to conform to BPT standards or to cease production. To allow a BPT variance based on economic capability and not to require adherence to the prescribed minimum technology would permit the employment of the very practices that the Administrator had rejected in establishing the best practicable technology currently available in the industry. Pp. 73-78.

(b) The EPA's interpretation of the statutory language is also supported by the legislative history, which shows that Congress understood that the economic capability provision of § 301(c) was limited to BAT variances; foresaw and accepted the economic hardship, including the closing of some plants, that BPT effluent limitations would cause; and took certain steps to alleviate this hardship, steps which did not include allowing a BPT variance based on economic capability. Pp. 79-83.

(c) In the face of § 301(c)'s explicit limitation to BAT variances and in the absence of any other specific direction in the statute to provide for BPT variances in connection with permits for individual point sources, the Administrator adopted a reasonable construction of the statutory mandate, and the Court of Appeals erred in concluding that, since BAT limitations are to be more stringent than BPT limitations, the variance provision for the latter must be at least as flexible as that for the former with respect to affordability. Pp. 83-84.

601 F.2d 111 and 604 F.2d 239, reversed.

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WHITE, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the consideration or decision of the cases.

WHITE, J., lead opinion

JUSTICE WHITE delivered the opinion of the Court.

In April and July, 1977, the Environmental Protection Agency (EPA), acting under the Federal Water Pollution Control Act (Act), as amended, 86 Stat. 816, 33 U.S.C. § 1251 et seq., promulgated pollution discharge limitations for the coal mining industry and for that portion of the mineral mining and processing industry comprising the crushed stone, construction sand, and gravel categories.1 Although the Act does not expressly authorize or require variances from the 1977 limitation, each set of regulations contained a variance provision.2 Respondents sought review of the regulations in

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various Courts of Appeals, challenging both the substantive standards and the variance clause.3 All of the petitions for review were transferred to the Court of Appeals for the Fourth Circuit. In National Crushed Stone Assn. v. EPA, 601 F.2d 111 (1979), and in Consolidation Coal Co. v. Costle, 604 F.2d 239 (1979), the Court of Appeals set aside the

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variance provision as "unduly restrictive" and remanded the provision to EPA for reconsideration.4

To obtain a variance from the 1977 uniform discharge limitations, a discharger must demonstrate that the

factors relating to the equipment or facilities involved, the process applied, or other such factors relating to such discharger are fundamentally different from the factors considered in the establishment of the guidelines.

Although a greater than normal cost of implementation will be considered in acting on a request for a variance, economic ability to meet the costs will not be considered.5 A variance, therefore, will not be granted on the basis of the applicant's economic inability to meet the costs of implementing the uniform standard.

The Court of Appeals for the Fourth Circuit rejected this position. It required EPA to "take into consideration, among other things, the statutory factors set out in § 301(c)," which authorizes variances from the more restrictive pollution limitations to become effective in 1987 and which specifies economic capability as a major factor to be taken into account.6 The court held that

"if [a plant] is doing all that the maximum use of

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technology within its economic capability will permit, and if such use will result in reasonable further progress toward the elimination of the discharge of pollutants . . . no reason appears why [it] should not be able to secure [101 S.Ct. 300] such a variance should it comply with any other requirements of the variance."

601 F.2d at 124, quoting from Appalachian Power Co. v. Train, 545 F.2d 1351, 1378 (CA4 197).

We granted certiorari to resolve the conflict between the decisions below and Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 590 F.2d 1011 (1978), in which the variance provision was upheld. 444 U.S. 1069.

I

We shall first briefly outline the basic structure of the Act, which translates Congress' broad goal of eliminating "the discharge of pollutants into the navigable waters," 33 U.S.C. § 1251(a)(1), into specific requirements that must be met by individual point sources.7

Section 301(b) of the Act, 33 U.S.C. § 1311(b) (1976 ed. and Supp. III), authorizes the Administrator to set effluent limitations for categories of point sources.8 With respect to existing point sources, the section provides for implementation of increasingly stringent effluent limitations in two steps. The first step to be accomplished by July 1, 1977, requires all point sources to meet standards based on "the application of

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the best practicable control technology currently available [BPT] as defined by the Administrator. . . ." § 31(b)(1)(A). The second step, to be accomplished by July 1, 1987, requires all point sources to meet standards based on application of the "best available technology economically achievable [BAT] for such category or class. . . ."9 § 301(b)(2)(A). Both sets of limitations -- BPT's followed within 10 years by BAT's -- are to be based upon regulatory guidelines established under § 304(b).

Section 304(b) of the Act, 33 U.S.C. § 1314(b), is again divided into two sections corresponding to the two levels of technology, BPT and BAT. Under § 304(b)(1), the Administrator is to quantify

the degree of effluent reduction attainable through the application of the best practicable control technology currently available [BPT] for classes and categories of point sources. . . .

In assessing the BPT, the Administrator is to consider

the total cost of application of technology in relation to the effluent reduction benefits to be achieved...

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